Although the Office of Chief Administrative Hearing Officer (OCAHO) found Metropolitan Enterprises committed 189 violations and were fined $151,200, it could have been worse as OCAHO dismissed 20 allegations for the failure of ICE to establish employment during the audited period. U.S. v. Metropolitan Enterprises, Inc., 12 OCAHO no. 1297 (March 2017).

The case started in the usual way with Immigration and Customs Enforcement (ICE) serving a Notice of Inspection (NOI), seeking I-9 forms for current and terminated employees for a two-year period. Nine months later, ICE issued a Notice of Intent to Fine with Count I alleging 156 violations for various errors in completion of the I-9 forms – no employee signature, no employer signature, blank section 2, and no status box checked, and Count II – failure to prepare/present 53 Form I-9s.

ICE sought a penalty of $195,649 based upon a baseline penalty of $935 (over 50% of the I-9 forms were in error). It aggravated the penalty by 5% for the seriousness of the violation and mitigated the penalty by 5% for good faith. ICE also alleged five employees were undocumented and aggravated by 5% for those 5 Form I-9s.

Although ICE proffered a company payroll register for the two-year period of the NOI, this document did not provide hiring and termination dates. Without such, it is impossible to determine whether Metropolitan was required to retain the I-9 forms of the terminated employees, (Remember if the employee has worked there for over three years, an employer is only required to retain the I-9 form for a year from termination). The ALJ stated “mind reading is not an accepted tool of judicial inquiry.” Despite this shortcoming, OCAHO could discern the applicable dates for 189 employees out of the 209 employees.

However, OCAHO could not discern the hiring and termination dates of 20 employees; therefore, it could not determine whether Metropolitan was required under the law to retain their I-9 forms. Based on this, OCAHO dismissed 20 of the allegations.

Concerning the mitigation of the penalties, OCAHO did not find good faith based upon “wide spread, fundamental errors, which as a whole, have undermined the purpose of the employment verification system.” Furthermore, OCAHO declined to find five employees were undocumented because the ICE auditor did not identify the databases that he searched nor provided any details regarding how he conducted the searches.

OCAHO concluded the penalties proposed by ICE “while arguably defensible, are slightly disproportionate to the overall extent of the violations.” Thus, OCAHO set the penalties at $800 per violation rather than $935 per violation.

This decision was interesting because it detailed ICE’s failure to provide the appropriate facts to established some of the allegations and OCAHO’s astonishment that ICE considered Metropolitan’s conduct would warrant good faith mitigation.

The Immigrant and Employee Rights Section (IER) of the Justice Department’s Civil Rights Division has reached a settlement agreement with Pizzerias, LLC, a pizza restaurant franchisee with 31 locations in Miami, Florida, where Pizzerias will pay a $140,000 civil penalty. The agreement resolves the IER’s investigation into whether Pizzerias violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when checking their work authorization documents.

The investigation concluded Pizzerias routinely requested that lawful permanent residents produce a specific document – a Permanent Resident Card (green card) – to prove their work authorization, while not requesting a specific document from U.S. citizens. This is referred to as document abuse. Lawful permanent residents may choose acceptable documents other than a Permanent Resident Card to prove they are authorized to work. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on citizenship or national origin.

Under the settlement, Pizzerias must pay a civil penalty of $140,000 to the United States, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements for two years.

The first two settlements by IER in Trump administration seem to reflect that the IER will continue to aggressively pursue employers that violated the INA.

Two related janitorial companies, Paragon Building Maintenance, Inc. and Pegasus Building Services Company, Inc., of Long Beach, California have settled claims with Immigrant and Employee Rights Section (IER) (formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practice) of the Department of Justice by agreeing to pay a penalty of $115,000 and to create a back pay fund of $30,000 to compensate eligible workers who lost pay due to these documentary practices. The settlement resolves the IER’s investigation into whether the companies violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when checking their work authorization documents.

The IER concluded Paragon and Pegasus routinely requested that lawful permanent residents show their permanent resident cards (green cards) to prove their work authorization while not requesting specific documents from U.S. citizens. Lawful permanents residents often have the same work authorization documents available to them as U.S. citizens, and may choose other acceptable documents besides the Permanent Resident Card to prove they are authorized to work. The investigation further revealed that the companies required lawful permanent resident employees to re-establish their work authorization when their permanent resident cards expired, even though federal law prohibits this practice.

Under the settlement, the companies also have agreed to post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.

This settlement is one of the first for the IER since President Trump took office. It will be interesting to see if the IER is as aggressive toward employers under the new president as they were in the last few years of the Obama administration.

The U.S. Department of Labor’s Administrative Review Board (ARB) found a consulting company was not obligated to offer or pay a fired H-1B employee’s airfare to India, her home country, because she took no initiative to leave the United States. SeeVinayagam v. Cronous Solutions (ARB Case No. 15-045 Feb. 14, 2017).

Cronous, a consulting company, took several months to place Vinayagam. Eventually, it placed her with another company as a contract worker, where she worked for a few months before Cronous’ contract expired. Several months later, Cronous shut down its business and notified Vinayagam of her termination and her need to immediately leave the United States. Vinayagam stated she needed to be paid all the salary owed for her time she was “benched” (available for employment but not employed) and requested airfare to India. Cronous’ representative said he would check on that matter.

Thereafter, Cronous sent a letter to the USCIS asking for revocation of its approval of the I-129 petition. Two months later, the USCIS did so. Cronous continued to pay Vinayagam until the revocation was approved.

Vinayagam continued to reside in the United States for another 1 ˝ years seeking other employment and unsuccessfully petitioning for a change of status to B-2 - visitor. She conceded she made no effort to leave the United States.

Vinayagam filed a complaint with the Department of Labor (DOL) on underpayment of wages and a lawsuit in federal court. The parties resolved the lawsuit with Vinayagam receiving $45,000 in back pay for the period of February 2008 to February 2009. Vinayagam asserted at the DOL that she was entitled to back pay continuing until September 28, 2010 because Cronous did not offer or provide payment of return transportation costs upon her discharge.

As most readers know, normally an employer who discharges an H-1B employee must offer to pay the employee’s airfare to his/her home country. Other conditions which employers must meet to affect a bona fide termination of an H-1B employee are express termination of employment relationship with the H-1B employee and notification of the USCIS of the termination in order that the I-129 petition can be revoked.

The ARB determined Cronous had ended its obligation to Vinayagam by paying her wages through February 2009 and notifying her of her termination. It did not need to pay her costs home or offer to do so because Vinayagam voluntarily chose to remain in the United States without a valid visa, sought employment with other employers, and unsuccessfully sought to change to a B-2 visa.

In this case, the employer was successful in not offering return transportation costs based on these particular facts. Your company may not be so lucky if it fails to offer the return transportation costs. Therefore, employers should always offer these return transportation costs when discharging an H-1B employee.

On February 14, 2017, the USCIS finally released the new “Handbook for Employers – Guidance for Completing Form I-9” (also referred to as M-274). In a comical note (at least for immigration compliance gurus), the USCIS backdated the handbook with the date of January 22, 2017.

As you probably know, the M-274 Handbook for Employers is the USCIS’s guidance on how to complete and retain the I-9 form. Additionally, this M-274 handbook captures policy and regulatory changes since 2013, explains guidance regarding automatic extensions for certain Employment Authorization Documents, features more current sample documents, and provides an overview of unlawful discrimination due to citizenship status or national origin, document abuse, and retaliation. (These prohibited practices are not enforced by the USCIS; rather, they are enforced by the Immigrant and Employee Rights (IER) of the Department of Justice’s Civil Rights Division, which was formerly entitled Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)).

A new M-274 handbook was necessary due to USCIS’s introduction of the new I-9 form (eff. date 11/14/2016), which became mandatory for use for new hires on January 22, 2017. (This date explains the USCIS’s interest in backdating the M-274). As explained in a previous blog entry, the new I-9 form added a number of new features, including: modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both; replacing the “Other Names Used” field in Section 1 with “Other Last Names Used”; requiring “N/A” be entered instead of blanks in certain fields in Section 1; providing a box for employees to check if they did or did not use a preparer or translator; modifying the I-9 form by adding a supplemental third page if using multiple preparers and/or translators; and adding an area in Section 2 to enter additional necessary information, such as for TPS extensions, OPT STEM extensions and H-1B portability. The new M-274 handbook offers guidance on how to utilize the new features of the I-9 form.

The 64-page handbook is an important tool for Human Resource employees, who handle I-9 compliance, as well as immigrant attorneys, who want the latest guidance from the USCIS. Many of its explanations are repetitive from the instructions that accompany the I-9 form or information available on I-9 Central – an Internet-based website that answers many I-9 related questions. However, the M-274 handbook is a convenient go-to document that answers many questions.

I recommend all individuals involved in I-9 compliance read the new handbook. For non-immigration compliance gurus, the reading of the handbook may be the answer for insomnia.